Last month we reproduced part of the provisions of Canon 34 of the Church of the Province of Southern Africa – an instance of an Anglican province enabling a bishop, in consultation, to declare a marriage ‘invalid’ on a number of grounds. But has the Church of England herself ever considered the possibility of a similar provision? The text offered for study this month, Draft Canon XXXVI, together with its accompanying paragraph of commentary, is from the proposed Revised Body of Canons included in the 1947 Report of the Archbishops’ Commission on Canon Law, The Canon Law of the Church of England.
The canon was not only innovative, but controversial – with, among the dissenters, the Commission’s Chairman himself, the Archbishop of York. As can be seen, the proposal was for a tribunal (the Bishop ‘sitting with his chancellor’), having a discretionary power to grant, in effect, dispensations enabling parties to marry as if the first marriage had been declared to be null and void. In fact, the proposal was very modest indeed, for the associated Commentary makes clear that the ‘good grounds’ referred to in the Canon were essentially those operating in the existing civil law of nullity. Perhaps one of the most useful elements of this text is the Commentary’s gloss that ‘decisions of the ecclesiastical tribunals are of religious significance only, and do not affect the civil legality of marriages’ – at least contemplating an internal ordering within a Church whose understanding of marriage may be not quite at one with the secular State’s.
This draft Canon resulted in the appointment, in 1949, of a Nullity Commission which reported in 1955 with The Church and the Law of Nullity of Marriage. This report did not accept the draft Canon, concluding that in a case where a decree of divorce should have been obtained, the Church should nonetheless accept the civil court’s decision. Nor did the Commission favour the establishment of church courts to deal with nullity.
Of particular interest to us, the Nullity Commission did consider the matter of defective intention as a ground for nullity – where the parties entered into an agreement contrary to the nature or purpose of marriage or which clearly showed a fundamental misunderstanding as to the nature of marriage, and whether this should be accepted as a ground for a subsequent decree of nullity. Defective intention, said the report, could be traced back to around 1200 when marriages could be contracted very casually, but now there were set forms for giving consent, and, besides, parties should be bound by what they have taken on. Otherwise parties could ‘take advantage of perjury,’ claiming that they did not really intend it, and place themselves in ‘a position of advantage compared to those who had married genuinely but whose marriage had broken down.’ The Commission also relied on the Articles of Religion, arguing that, as the unworthiness of the minister does not hinder the effect of the Sacrament, then similarly private intentions do not affect the sacrament of marriage. Private intentions should not detract from the words expressed, in the view of the Commission, so that – as indeed happened in a case in 1917 – even where parties enter into a prior written agreement to forgo their conjugal rights, such an intention is void as against public policy and the marriage would be held to be valid. A question for us is whether these arguments are soundly based.
The 1955 Nullity Report has been the only occasion when a Church of England commission has engaged with nullity, and even then with a narrow brief (not, for example, considering an extension of the nullity principle). The treatment of the subject since then (Root 1971, Lichfield 1978, Marriage and the Standing Committee’s Task 1983, and of course Scott-Joynt 2000) has been somewhat flimsy and superficial.
FROM THE REVISED BODY OF CANONS PROPOSED IN 1947
CANON XXXVI Of Holy Matrimony
The Church of England affirms, as our Lord’s principle and standard of Marriage, a life-long and indissoluble union, for better or for worse, till death them depart, of one man with one woman, to the exclusion of all others on either side, for the procreation and nurture of children, and for the mutual society, help and comfort, which the one ought to have of the other both in prosperity and adversity.
If in regard to a marriage which has been duly dissolved by secular law the Bishop of diocese, sitting with his Chancellor, is satisfied that there were good grounds upon which such marriage could, instead of being dissolved, have been declared to be null and void, it shall be lawful for such Bishop in his discretion to allow either of the parties to such marriage, although the other of them is still living, to marry, or to be married to, another person, according to the rites and ceremonies of the Church of England, in like manner as if such first mentioned marriage had been declared to be null and void.
We dissent from the proposal in section 2. Cyril Ebor, Claude Jenkins, E. F. Jacob.
Canon XXXVI, Of Holy Matrimony, contains an important innovation. It proposes the establishment of ecclesiastical tribunals before which cases of nullity may be brought. It sometimes happens that marriages are dissolved in the secular courts which in fact were no marriages at all, and for which a decree of nullity ought to have been issued. Divorced persons are precluded by the Canon Law from marrying again; in cases such as these, this is an injustice. The canon proposes machinery for remedying this injustice. The commission believes that present conditions justify this. The decisions of the ecclesiastical tribunals are of religious significance only, and do not affect the civil legality of marriages. Additional legislation will be required to deal with machinery of the tribunals – for they do not form part of the official courts enumerated in Canon CXII [disciplinary matters or ecclesiastical offences] and do not share their powers and status – but the Commission has not thought it worth while to proceed with the details before the principle, as embodied in the canon, has been approved.